Monthly Archives: October, 2012

Jef De Mot and Michael Faure, ‘Report for the European group on tort law: state liability: an economic analysis’

Introduction: Traditional economic analysis of accident law has largely focused on individual utility maximizing actors as potential injurers and potential victims. On that basis a huge literature has been developed since the early publications of Calabresi in the 1960s explaining under which conditions particular liability rules may be effective in promoting social welfare. Moreover, the […]

Paul Miller, ‘Justifying Fiduciary Remedies’

Abstract: Fiduciary remedies are notoriously potent. Fiduciaries who profit from their disloyalty are liable to be ordered to disgorge all of their gains. It is widely understood that disgorgement deters disloyalty by threatening removal of gains, the prospect of which might incentivize wrongdoing. However, disgorgement may be ordered even where fiduciaries act for the primary […]

Enrico Baffi, ‘The Failure of Decoupling Liability and Other Mistakes in Tort Law’

Abstract: In this paper I want to demonstrate that it is not possible, with traditional liability rules, to have one party that takes an efficient level of precaution. Both parties, whatever is the rule, take an excessive level of precaution. The problem is that, when we try to calculate the costs of an activity, we […]

George Roach, ‘Unjust Enrichment in Texas: Is it a Floor Wax or a Dessert Topping?’

Abstract: “… This article will show that Texas courts are not ‘comfortable’ with the law in equity. It’s always been an unusual relationship: in 1845, Texas was one of the first jurisdictions to merge courts in equity with courts at law and to provide jury trials for the former. There are three issues that highlight […]

Fabrizio Cafaggi, ‘From a Status to a Transaction-Based Approach? Institutional Design in European Contract Law’

Abstract: The Common European Sales Law (CESL) is a regime of European sales law intended to regulate cross-border transactions. It is currently under examination at the European Parliament. The scope of the regulation is to introduce a regime for cross-border transactions that individual Member States (MS) can further extend to domestic transactions (art. 13). Its […]

Loos and Schelhaas, ‘Commercial Sales: The Common European Sales Law Compared to the Vienna Sales Convention’

Abstract: If the Common European Sales Law (CESL) is adopted, commercial parties will have the opportunity to choose between two international legal instruments for the regulation of their international commercial sales contracts. Whereas CESL is available to both consumer and commercial sales contracts, the Vienna Sales Convention (CISG) is intended for commercial sales contracts only. […]

Qi Zhou, ‘Harmonisation of European Contract Law: Default and Mandatory Rules’

Abstract: This Chapter argues that the current harmonisation of European contract law will eventually fail. Supporters of the harmonisation suggest that the divergence in national contract laws not only generates unnecessary costs for cross-border trade, but also undermines fair competition in the European market. Thus, legal harmonisation is the necessary solution. Unfortunately, the harmonization movement […]

Elizabeth Porter, ‘Tort Liability in the Age of the Helicopter Parent’

Abstract: Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish […]

Wendy Netter Epstein, ‘Contract Theory and the Failures of Public-Private Contracting’

Abstract: The market for public-private contracting is huge and flawed. Public-private contracts for services such as prisons and welfare administration tend to result in cost savings at the sacrifice of quality service. For instance, to cut costs, private prisons skimp on security. Public law scholars have studied these problems for decades and have proposed various […]

Muireann Quigley, ‘Property in Human Biomaterials – Separating Persons and Things?’

Abstract: The traditional ‘no property’ approach of the law to human biomaterials has long been punctured by exceptions. Developments in the jurisprudence of property in human tissue in English law and beyond demonstrate that a variety of tissues are capable of being subject to proprietary considerations. Further, among commentators, there are few who would deny, […]